Evicting tenants is never something a managing agent wants to do, but there are occasions when it is the only option. When this is the case, a Section 21 notice is one option to consider to obtain possession; however there are some very important factors to consider before issuing such a notice.
In her post blog post for us, Marina Imamshah, a Paralegal/ future Trainee Solicitor at Brady Solicitors, explains what a Section 21 notice is, and details the criteria that needs to be met to ensure it is enforceable.
What is a Section 21 notice?
A section 21 notice is used to evict tenants when an assured shorthold tenancy is in place. Seeking possession of the property this way is normally a result of the written fixed term tenancy ending or the Landlord simply wishing to take back possession of the property. Managing agents must provide tenants with a minimum of two months’ notice, but they are not required to provide the tenants with any reasons for the eviction. The Section 21 process is entirely no fault.
In order to issue a Section 21 notice, managing agents must ensure that they have met certain criteria either at the outset of the tenancy and during the term of the tenancy. Failure to meet the conditions below could affect the validity of the notice and ultimately prevent it from being enforceable.
Ensuring your Section 21 notice is valid
Before issuing a Section 21 notice it is worth checking you have complied with the following:
You are entitled to request up to 5 weeks’ rent as a deposit, as well as charge fees where relevant. However, you need to ensure that this complies with the Tenant Fees Act 2019. Anything that is not covered within this act must be repaid to your tenants immediately, so that the Section 21 notice can be issued.
If the council has served a notice within the last 6 months to the managing agent ordering that they carry out emergency works on the property, or the tenants have made a written complaint about the conditions of the property then a Section 21 notice would be deemed invalid.
When issuing a Section 21 notice to tenants, managing agents must reflect this on a 6A form which can be downloaded from www.gov.uk. Additionally, before issuing the notice managing agents must ensure that the tenancy began at least 4 months ago and that they’re giving the tenants at least 2 months’ notice to leave the property in question.
The managing agent, the Landlord, or the prior managing agent must have provided the tenants with the following documents prior to the tenancy or at the outset of the tenancy:
- Gas Safety Certificate for the property
- The government’s ‘How to rent’ guide
- Energy Performance Certification
- EICR Electrical Safety Certification
Nevertheless, if you are a managing agent and you have not yet provided these documents to your tenants, don’t panic! You may be able to send out some of the documents retrospectively to tenants and then issue a Section 21 once they’ve received them.
Landlords must keep tenants’ deposits in a protected scheme as this will affect the validity of a Section 21 notice. Additionally, if you have protected your tenants’ deposit late, this will also render the notice invalid. To confirm, late protection means over 30 days after the commencement of the tenancy agreement/contract. It is important to note that the abovementioned rules only apply to deposits paid after 6 April 2012. Different rules apply if the deposit was paid prior to this date. Essentially, if the deposit is not protected in a scheme or is protected late, the deposit must be returned to the tenants before the Section 21 notice is issued.
To conclude, if you ensure that you have met the criteria mentioned above before issuing your Section 21 notice, it is likely to be valid. This would mean that the tenants would continue to live at the property until they depart voluntarily or the legal process begins for an eviction.